I am now halfway into my three-year term as an Elected Director to the CPATA Board. I'd like to begin by thanking the licensees for putting their faith in me and the other elected Directors, Brigitte, Leonora and Jeff, towards the fulfilment of this important role. A lot has happened in 1.5 years, and much has been said about CPATA's work. I would like to take this opportunity to report on my perspective about these things, and to invite anyone who wishes to speak with me to reach out. The more perspectives the better. Furthermore, Leonora, Juda (CEO & Registrar), Ruth (Board Chair), Jennifer (Deputy Registrar) and I will be at the IPIC annual meeting in Winnipeg. I know we are looking forward to seeing you at this important meeting and hearing your perspectives.
Governance and the Role of Elected Director
One of the first tasks as an elected director is to understand the principles of governance and the roles of an elected director. While these are spelled out in the CPATA legislation and rules, they can be difficult to immediately internalize. The takeaway is all directors to regulatory bodies must make decisions having regard to the public interest, which can include a range of voices, including the diverse voices of licensees, government bodies and clients. Elected directors are not elected to represent the views of constituents as one might presume given the role of elected officials. Elected directors share their perspectives as licensees and experiences from the profession with the Board and must ultimately make decisions as a Board in the public interest while setting aside any personal preferences.
License Fees
The fee increase for licensees has been a significant point of lively debate. Leading a firm with over 10 CPATA licensees, I feel the impact firsthand. Yet, after delving into the CPATA Act, engaging with varied viewpoints, and assessing the budget, it's clear to me CPATA requires this increase to meet its legal obligations. My role at PCK equips me with budgetary insights, and even amidst strong emotions and opinions, I believe CPATA's actions are appropriate and justifiable. With the new fees, CPATA operates on a 2-3 million dollar budget, and has very little in the way of reserves. Despite limited resources, a lean staff, and no physical premises, it has statutory requirements that rely solely on a modest licensee pool for revenue. I'm open to discussing my analysis with anyone interested, and I welcome alternative, evidence-backed viewpoints.
Professional Liability Insurance Fees
Beyond CPATA license fees, the cost of insurance has also been a focal point of discussions. Mandatory professional liability insurance has elevated fees beyond just those of CPATA. Specifically, many solo lawyer-agents and small firms in Ontario, representing a significant portion of licensees, have had to invest in the IPIC insurance program. For some, this has meant additional mandatory IPIC dues of roughly $500 and premiums running into thousands. While it's comforting that lawyer-agents in BC, Quebec, and some other regions benefit from their mandatory lawyer's professional liability insurance, the majority don't. This gap in coverage isn't a recent issue, with many, myself included, having opted for insurance long before CPATA's intervention. It's hoped that insurance programs will soon offer more equitable coverage and premium structures. Thus, when evaluating licensee costs, one must consider not only CPATA fees but also the mandatory insurance and any obligatory IPIC membership charges.
Self Regulation vs Independent Regulation
CPATA is a modern form of regulator in that it is independent but not self-regulating. As I have learned about professional regulation, this is the future of regulation. I've heard strongly held views that the public is better served if a profession has external oversight. This seems to have been Parliament's view when enacting CPATA. If you have struggled with a feeling of hopelessness in holding a professional accountable for something that affected you or a loved one, you may have firsthand context... that a self-regulated profession may not be looking out for you as a consumer. The CPATA legislation goes even further, putting a sharp line between the regulator and IPIC or any other advocacy group.
While many initially lobbied for self-regulation, the outcome was independent regulation, which hasn't sat well with those preferring self-regulation. Revisiting this legislation now seems counterproductive. I'm confident that with mutual respect and cooperation, independent regulation can serve all parties effectively. Concerning the notion that lawyer-agents should fall under their respective law societies, the decision in Law Society of British Columbia v. Mangat 2001 SCC 67. (See also Sperry v. Florida: 373 U.S. 379 (1963)), settled this debate some time ago. It's time we focus on the significant challenges and opportunities ahead for our professions. Let's move forward together.
Competency
In 2024, CPATA will administer the first overhaul of the exams in a couple of generations. For those of you who remember the subjectivity of those exams, the extremely low pass rates, and the thankless hours spent marking them as volunteers, the overhaul is welcome. Additionally, those of us who have trained others can understand the frustration faced by trainees who had to retake these exams. We all know this overhaul is long overdue, and I believe we owe all the individuals who participated, licensees and non-licensees alike, an enormous debt of gratitude. Well done, especially within the confines of such tight budgets.
Discipline
I initially had reservations about a regulator for patent and trademark agents, largely because I felt agents rarely misbehaved. While many in the profession might agree, I realize I might have been too optimistic. The statutorily mandated CPATA investigation and discipline committees have been active managing complaints from the public regarding the behavior of a small number of agents. These committees are complex and require careful attention to due process in order to balance the rights of the public and the rights of licensees. There is a significant financial risk if a case becomes extensively complex — it's not a task for volunteers. Adequate funding is crucial for this aspect of CPATA. (And I have not even touched on the costs of an unauthorized practice enforcement program, an area that some feel is urgently required.)
Ethics Inquiries Services
Before CPATA, I struggled finding resources, be it through my excess insurer or through advocacy groups like IPIC and CBA, for advice on agency ethics and practice issues. On the other hand, Lawpro gave me excellent guidance but only if it fell under their coverage. The ethics hotline of CPATA is now off the ground. As part of your CPATA license fees, you can now have somewhere to get firsthand practice advice. While insurance remains separate from CPATA, it's important to note this service is now available. Check out theCPATA websitefor more information.
The Vision for Trademark and Patent Agents
I always prioritize the long game, and that remains my focus. Looking at Canada on the world stage, we are a desirable place for foreign companies to bring high-value IP assets into our domestic market, especially given our incredible wealth for a population our size. We're also great innovators and increasingly recognize that strong domestic IP protection is essential for Canada's long-term global success. It's time to focus on the things that can unite us, things that will provide benefits to the profession and Canada as a whole. A great place to start would be setting a common goal of boosting Canada's rank in the Global Innovation Index. (Seehttps://www.wipo.int/edocs/pubdocs/en/wipo-pub-2000-2023/ca.pdf)
There is much work to be done; let's stay focused, positive, and build these professions together.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.